In the first action the amendment if allowed would be useless without a new trial. The motion to amend was not seasonably made, and it does not appear that justice requires a new trial. The equitable principle of Britton v. Turner and Horn v. Batchelder (6 N.H. 481, 41 N.H. 86, Wadleigh v. Sutton, 6 N.H. 15, Elliot v. Heath, 14 N.H. 131, Clough v. Clough,26 N.H. 24, 32, Davis v. Barrington, 30 N.H. 517, 528, Page v. Marsh,36 N.H. 305, 308, Smith v. Newcastle, 48 N.H. 70, Blodgett v. Berlin Mills,52 N.H. 215, 220, Ellsworth v. Brown, 55 N.H. 396) is applicable to a lessor's claim for use and occupation. In the second action the amendment being seasonably applied for, should be allowed if justice requires it. Morgan v. Joyce, ante, p. 476.
Case discharged.
ALLEN, J., did not sit: the others concurred. *Page 540